efficient clerk and give him the fees payable for his own services. The fees in other similar offices are $1 an hour whilst employed in taxation; then there are filing certificates &c. which would average, say $10 a day in all, or $60 a week, which would make a reasonable salary, for what would be but routine work. If the plan worked, and it works well in other places, then the staff of clerks could be increased and these matters of detail arranged.

At the same time that the rules for a tariff were framed, other orders might be passed abolishing the old-fashioned phraseology of bills and other pleading without interfering with the necessary certainty of pleading.

If however, it is absolutely necessary that the Legislature of the State should invest the judges with the necessary power to pass and carry into effect such rules of court as are suggested, a very brief act would be all that would be necessary for that purpose, which of course is very different from preparing a code. That would not prevent the adoption of a code at some future time. To give to the judges power to decide that the defeated litigant should pay the costs and attorney's fees of his opponent would perhaps make necessary such an act. It would be a very just and proper measure and be alike beneficial to suitors and attorneys.

C. W. Cooper.

MR. JUSTICE MILLER ON JURY TRIAL.

Mr. Justice Miller, of the United States Supreme Court, has contributed to the American Law Review an article upon the system of trial by jury, from which we give some extracts below. "The experience of this learned judge," says the Montreal Legal News, "supports the opinions which have been expressed on the same subject by eminent members of our own bench. The topic came up at a recent gathering of the Ohio State Bar Association. Judge Harris, one of the speakers, believed that the jury was an indispensable agency in judicial administration, though he admitted that sometimes jurors were encountered who had peculiar notions of justice. He related an incident of a Bohemian oats case in which the bench instructed the jury to the effect that a farmer who signed a note for $160, in payment for oats, was legally bound to pay it, but that if the holder was guilty of swindling the farmer, the note could not be collected. The jury returned a verdict for $80 in favor of the agent for the oats, because the foreman of the jury was once swindled himself in the same way, and had settled for fifty cents on the dollar, and he persuaded his associates that such a settlement was about right.'

"I must confess" says Justice Miller, "that my practice in the courts, before I came to the bench, had left upon my mind the impression that as regards contests in the courts in civil suits, the jury system was one of doubtful utility; and if I had then been called upon, as a legislator to provide for a system of trial in that class of actions, I should have preferred a court constituted of three or more judges, so selected from different parts of the district or circuit in which they presided as to prevent, so far as possible, any preconcerted action or agreement of interest or opinion, to decide all the questions of law and fact in the case, rather than the pres ent jury systein.

This impression upon me, growing out of my practice, I have since come to think, however, was largely due to the fact that, owing to popular and frequent elections of the State judges, and insufficient salaries, the judges of those courts in which I mainly practised were neither very competent as to their learning, nor sufficiently assured of their position, to exercise that control over the proceedings in a jury case, and especially in instructing the jury upon the law applicable to it, which is essential to a right result in a jury trial. It may as well be stated here that a case submitted to the unregulated discretion of a jury, without that careful 'discrimination between matters of fact and matters of law, which it is the duty of the court to lay before them, is but little better than a popular trial before a town meeting. An experience of twenty-five years on the bench, and an observation during that time of cases which come from all the courts of the United States to the Supreme Court for review, as well as of cases tried before me at nisi prius, have satisfied me that when the principles above stated, (principles upon which judges should instruct). are faithfully applied by the court in a jury trial, and the jury is a fair one, as a method of ascertaining the truth in regard to disputed questions of fact, a jury is in the main as valuable as an equal number of judges would be, or any less number.

*

In my experience in the conference room of the Supreme Court of the United States, which consists of nine judges. I have been surprised to find how readily those judges come to an agreement upon questions of law, and how often they disagree in regard to questions of fact which apparently are as clear as the law. I am therefore of opinion that the

system of trial by jury would be much more valuable, much shorn of many of its evils. and much more entitled to the confidence of the public as well as of the legal and judicial minds of the country, if some number less than the whole should be authorized to render a verdict. I would not myself be willing that a bare majority should be permitted to do this.

There could be little difference in the confidence which would be reposed by the court, the public, or the parties, in the opinion of five men or of seven. It should be something more, then, than a bare majority. If the jury is to consist of twelve men. I certainly would not be willing that its verdict should represent less than eight, which is two thirds, or probably nine, which is three fourths. Many of what are called mistrials, produced by a failure of the jury to render a verdict. would be avoided if the power were given to nine or eight to render a verdict instead of requiring them all to unite in it, and such a verdict would be entitled to as much confidence as if it were unanimous. In respect to civil actions, where the question at issue is the right to specifie property, or to damages for failure to fulfil a contract, or torts against the person or property of the plaintiff, this approach to perfect justice is perhaps as near as the fallibility of human nature permits. and the change removes the most serious objection to the system of trial by jury, the one which stands out as almost without support in reason or experience.”—(American Law Review.)

SUFFRAGE IN WASHINGTON TERRITORY.

The suffrage law passed by the legislature of 1837-88 places females upon an equality with males, and provides that adult citizens and adults who had declared their intention to become citizens, having a residence of six months in the territory, sixty days in the county, and thirty days in the precinct next preceding the day of election, shall be entitled to vote. This statute was opposed on the following grounds:

1. That women ought not to take part in elections.

2. That the legislature had no power to abolish sex as a qualification for voting until the matter had been submitted to the people.

3. That the legislature had no power to recognize women as qualified voters, because in the Organic Act the word "citizens," in defining the. qualification of voters, was used in the sense of male citizens only, and the legislature cannot give it a broader meaning than it had in the Organic Act.

The opponents of suffrage by these objections attempted to prevent the enfranchisement of woman. The first objection was not seriously urged. The second objection, that the legislature lacked power to pass such a statute without direct authority from the people, is effectually disposed of by the decision of the Supreme Court of this territory in the Local Option Case, Thornton v. the Territory, where the court held that the legislature cannot delegate its law-making power to the voters.

The third point, as to citizenship, was gravely urged in each house by attorneys at law from each of the two great political parties, and was also argued before the Supreme Court of the Territory by an attorney who seized an opportunity to obtain a decision in advance nullifying the law. The point was made that women were not citizens within the meaning of the first section of the Fourteenth Amendment; and, therefore, the territorial legislature had not the power to confer upon women the elective franchise. The court listened to the argument and disposed of it in their opinion as filed, by saying: "The point is made in the brief of counsel that the territorial legislature have not the power to confer upon women the elective franchise; that question, however, is not necessarily involved in the matter before us, and hence we do not feel called upon to pass upon it."

Sec. 1860, Rev. St. U. S., confers upon the legislative assembly power to regulate the qualifications of voters subject to certain restrictions which, essentially, based the right to vote on citizenship, adult age and residence. It does not term voting a privilege, but a "right of suffrage." The power to regulate it is the same as to male and female citizens. If the legislative assembly has power to disfranchise female citizens it can disfranchise male citizens. Congress has not disapproved any act passed by the legislature of the territory which has removed the civil or political disabilities of woman.

The early legislation in reference to this territory was favorable to women.

Sec. 4 of the Donation Act of September 27th, 1850, granted lands to every white settler above the age of eighteen years, etc., giving a half section to a single man and a whole section to a married man, one half to be held by the wife, in her own right. Under this law, it was held that an unmarried woman was included in the term "single man." See Silver v. Ladd, 7 Wall. 225, where it was held that the restrictive words "single man" are "capable of being construed generically so as to include both sexes," and that in the fifth section the words male citizens are used to express a limitation as to sex. The same principle applies to the right of suffrage in the Organic